For several months, we have been following the National Labor Relations Board’s (NLRB) increasing scrutiny of employer social media and communications policies that, the agency feels, impair employees’ rights to complain about wages and working conditions – rights enjoyed by nearly all employees (not just unionized employees) under the National Labor Relations Act (NLRA).  [See NLRB Judge Issues First Ever Ruling in Social Media Line of Cases and NLRB Judge Rules that Employee’s Comments on Facebook Were Not Protected] Several prominent cases have attracted national attention, wherein the NLRB found social media policies that prohibited disparaging comments about supervisors and working conditions on social media sites to be unlawful.

Recent guidance issued by the NLRB signals that the agency will continue to scrutinize employers’ social media policies. On January 25, 2012, the Acting General Counsel of the NLRB issued a 35-page Operations Management Memo confirming the agency’s position that broad social media policies that impair employees’ ability to complain about wages or working conditions run afoul of the NLRA. However, the Memo also makes clear the NLRB’s position that an employee’s comments on social media generally are not protected if they are mere gripes not made in relation to group activity among employees. The Acting General Counsel asks in the Memo that the agency’s regional offices continue to send social media cases to his attention so the agency can track their progress and formulate a consistent approach. Approximately 75 such cases have been forwarded to his office to date.

Employers are encouraged, if they have not already done so, to review their social media, blogging, and other communications policies with counsel to ensure that they are compliant with recent NLRB guidance. Employers should also exercise caution before disciplining or terminating an employee solely for opinions expressed on social media, especially if those opinions touch on working conditions, wages, or other terms and conditions of employment.